A New Generation of Storytelling: Getting a Grip on The New Pepsi Bottle Design

by Winthrop & Weinstine, P.A.
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The importance of “storytelling” seems to be the buzzword lately when it comes to branding communications and decisions. For example, last August Branding Strategy Insider wrote that “Brands Must Master the Art of Storytelling,” and just last week it wrote twice on the subject, about “Shared Values in Brand Storytelling” and “5 Pillars for Brand Storytelling Success.”

Branding Strategy Insider’s guest-blogger Susan Gunelius, President and CEO of KeySplash Creative identified “five pillars that brand storytellers understand and use to intrigue, engage, and connect emotionally with consumers”:

  1. Speak truthfully;
  2. Infuse personalities into stories;
  3. Create characters your audience will root for;
  4. Include a beginning, middle, and end; and
  5. Don’t give it all away.

With a healthy dose of humility I’d like to suggest the consideration of a sixth pillar, from the perspective of a concerned trademark type: Don’t permit the storyline to kill the IP!

The stories being told about Pepsi’s new bottle design inspired my suggestion for this intellectual property-focused pillar. AdAge recently reported on Pepsi’s new bottle design:

AdAge Image

“The twisted-bottle shape is a standard the brand hopes to build on — Coca-Cola has long been known for its iconic contour bottle shape. [VP of Marketing Angelique] Krembs said the team, including Chief Design Officer Mauro Porcini, who was brought onboard last June, looked in Pepsi’s archives for inspiration and features that were consistent over time.”

“The swirl on the new bottle is an element that goes back to some of the early glass packages,” Ms. Krembs said. “We didn’t want to create a shape that came out of nowhere,” Ms. Krembs said. “It’s not uniform, it’s a little asymmetrical, there’s a little edginess and playfulness, which is consistent with Pepsi’s equities and youthful spirit.”

While marketing types might debate on the persuasive power of the story behind the bottle design, from a trademark perspective, to this point, at least, it appeared totally consistent with a claim of non-traditional trademark ownership in the product packaging. That is, until the unfortunate emphasis on the “swirled grip” bottom portion.

The Dieline elaborates with this quote from Ms. Krembs: “The etched, grip-able bottom allows consumers to have a more stimulating, tactile interaction with the bottle itself.Brand Channel adds: “The new bottle bottom makes it easier to hold and the label covers less of the contents, showing more of the actual beverage.” And, Pepsi answered a question from Chief Marketer, this way: “Consumer testing has shown positive results, with our consumers finding that the new bottle design reflects Pepsi’s playful spirit while providing a grip-able bottom.” It might be best to “get a grip” on the IP, by leaving the focus of the branding storyline on the “playful spirit.”

Of course, the danger of a branding storyline that focuses on a bottle’s “grip” may be viewed as touting function over form, the death-knell for trademark protection covering the shape of product containers and packaging.

An additional risk of functionality is highlighted in the online comments to the AdAge article: “[T]he redesign’s main purpose is to keep the Pepsi logo visible while someone is holding the bottle. Why does that matter? Because the ubiquity of camera phones and social media. They’re leveraging free advertising opportunities to ‘capture the excitement.’”

And, this matters too – from a trademark perspective — because if the “grip-able” portion of the bottle below the label is so designed for “gripping” and to render the label more visible, the specter of functionality begins to enter the storyline. So, it will remain to be seen whether the USPTO holds the “grip-able” part of the storyline against Pepsi’s attempt to secure non-traditional trademark ownership of the bottle shape on functionality grounds.

PTO Drawing

As you may recall, we’ve previously issued a few related warnings to those brand storytellers who have seemingly forgotten about the fragile nature of intellectual property:

So, what do you think, will Pepsi’s applied-for bottle design trademark fail on functionality grounds or will this story have a happier ending?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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